[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
   ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                    CREATED THIS PROGRAM? (PART IV)

=======================================================================

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               ----------                              

                           NOVEMBER 15, 2006

                               ----------                              

                           Serial No. 109-157

                               ----------                              

         Printed for the use of the Committee on the Judiciary


   Available via the World Wide Web: http://judiciary.house.govFOR 
                               SPINE deg.
      ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM:

    ARE WE FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS

                WHEN WE CREATED THIS PROGRAM? (PART IV)



  ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                    CREATED THIS PROGRAM? (PART IV)

=======================================================================

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           NOVEMBER 15, 2006

                               __________

                           Serial No. 109-  

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                    U.S. GOVERNMENT PRINTING OFFICE
30-840                      WASHINGTON : 2007
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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                         Allison Beach, Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

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                           NOVEMBER 15, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Chairman, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     4

                               WITNESSES

Mr. Laurence Fuortes, M.D., Professor, Department of Occupational 
  and Environmental Health, University of Iowa
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Mr. John Mauro, Project Manager, Dose Reconstruction Consulting 
  Services, Advisory Board on Radiation and Worker Health Under 
  EEOICPA, Sanford Cohen & Associates
  Oral Testimony.................................................    13
  Prepared Statement.............................................    15
Ms. Kathy Bates, Surviving Claimant Under the Energy Employees 
  Occupational Illness Compensation Program Act
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
Mr. Richard Miller, Senior Policy Analyst Government 
  Accountability Project
  Oral Testimony.................................................    35
  Prepared Statement.............................................    38

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John N. Hostettler, a 
  Representative in Congress from the State of Indiana, and 
  Chairman, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    66
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    79
Memorandum from Morton Rosenberg, Specialist in American Public 
  Law, American Law Division, Congressional Research Service.....    84
Prepared Statement of Robert Alvarez, Senior Scholar, Institute 
  for Public Studies.............................................   101
Office of Management and Budget Memorandum.......................   119
Prepared Statement of Paula Graham, Member, Advisory Board to the 
  Health Researchers of the University of Iowa, Department of 
  Energy.........................................................   127
Response to Post-Hearing Questions from Laurence Fuortes, M.D., 
  Professor, Department of Occupational and Environmental Health, 
  University of Iowa.............................................   144
Response to Post-Hearing Questions from John Mauro, Project 
  Manager, Dose Reconstruction Consulting Services, Advisory 
  Board on Radiation and Worker Health Under EEOICPA, Sanford 
  Cohen & Associates.............................................   149
Response to Post-Hearing Questions from Kathy Bates, Surviving 
  Claimant Under the Energy Employees Occupational Illness 
  Compensation Program Act.......................................   159
Response to Post-Hearing Questions from Richard Miller, Senior 
  Policy Analyst Government Accountability Project...............   210
Prepared Statement of Sandra Wolff Baldridge.....................   217
Significant documents and communications related to the 
  Subcommittee's oversight of the Energy Employees Occupational 
  Illness Compensation Program Act...............................   220


  ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                    CREATED THIS PROGRAM? (PART IV)

                              ----------                              


                      WEDNESDAY, NOVEMBER 15, 2006

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:09 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Hostettler (Chairman of the Subcommittee) presiding.
    Mr. Hostettler. The Subcommittee will come to order. 
Today's hearing is the fourth in a series of oversight hearings 
the Subcommittee has been holding on the Energy Employees 
Occupational Illness Compensation Act, or EEOICPA. The point of 
this hearing and the fifth hearing to follow in December is to 
review what the Committee's oversight efforts have revealed as 
weaknesses in the program, the status of any reforms made to 
address those weaknesses and discussion of any emerging issues 
that may need to be addressed in the next Congress.
    Because of their complexity, the Subcommittee is compelled 
to make an effort to create as much of a roadmap of a program 
and its problems as possible for those who would provide future 
oversight. The Judiciary Committee's oversight did not begin 
with investigation on implementation of the OMB passback 
options. This Committee has taken an active role in policing 
its program from the start. And I sincerely hope that rigorous 
oversight by this Committee will continue in the 110th Congress 
and future Congresses until we can all say with confidence 
that, yes, we are fulfilling the promise we made to these 
veterans of the Cold War when we created this program.
    I would have liked to have been able to say that already, 
but the record created by these hearings tells us that it is 
just not so.
    Shortly after assuming the chairmanship of this Committee, 
I sent a letter to the General Accounting Office asking that 
they examine the key components of the program. That was May 
2003. As time went on, the Subcommittee heard several 
complaints on the way the program was functioning and the 
behavior of officials involved in the program.
    That prompted a November 2004 request to the Department of 
Health and Human Services for extensive documents and 
information concerning the functioning of the program, the 
Advisory Board of Radiation and Worker Health, and that board's 
audit contractor.
    Subsequently, after the initial review of their submissions 
a request was made for GAO to expand the scope of their review 
of subtitle B, which they agreed to. During 2005, the Committee 
sent letters to various agencies regarding concerns with 
different actions taken with regard to the program.
    One letter to the Attorney General concerned the use of 
classified information to decide a claim under the program and 
asserted that congressional intent was that transparency and 
the processing of claims be an essential principle of this 
program. A second letter concerned the removal of two board 
members, a worker and a doctor. No resolution to either of 
those concerns was forthcoming.
    In the case of the request by Chairman Sensenbrenner that 
the removed board members be offered reinstatement so that the 
board would not lose their expertise and experience with the 
program, the Committee received a one-sentence letter thanking 
us for our comments.
    On October 18, 2005 the White House announced the 
appointment of three new board members, one of whom had major 
conflicts of interest issues since a company he founded and 
whose employees included immediate family members had been 
contracted to do dose reconstructions for NIOSH. Only one new 
worker representative was included in the new appointments. 
When the OMB passback memo surfaced, the Subcommittee began 
planning hearings. Those hearings were, at a minimum, to 
include Department of Labor and the Office of Management and 
Budget.
    The Committee's invitation was met with resistance by DOL 
and HHS. But they both eventually provided witnesses. That was 
not the case with OMB. Administration officials suggested that 
an exchange of letters between OMB and the Committee containing 
appropriate assurances and stating good faith actions that 
would be taken to assure the claimant community of the 
Administration's rejection of the passback options would be a 
more appropriate response than OMB testifying.
    There were several exchanges of draft letters between OMB 
and Committee staff as well as a meeting between myself and the 
Administration to personally express the need for specific 
actions and/or statements that OMB had to make in lieu of 
testifying.
    One of those actions was to either offer reappointment to 
the board members removed without cause, or provide a plausible 
explanation why they had been removed, while other less 
qualified members who had made their support of DOE management 
very clear, had been retained. When it became clear that action 
was not--was nonnegotiable for the Committee, OMB took the 
broad nonspecific letter of explanation with regard to the OMB 
passback and used it as the basis for letters responding to 
Senate and House Member offices. They refused to consider 
reversing the actions of the Administration with regard to the 
2 pro worker Advisory Board members.
    During the first week of August 2006, NIOSH was notified by 
the White House office of personnel that Wanda Munn and Roy 
Dehart had been retired from the board effective immediately, 
as part of the ongoing activity of rotating board members.
    Dr. Dehart had filled one of the medical slots on the 
advisory board, Ms. Munn, an engineer and strong supporter of 
the DOE complex does not appear to have been qualified to fill 
any of the statutorily required board slots, medical, 
scientific or worker.
    It was brought to the Subcommittee's attention that Ms. 
Munn was unhappy with her retirement and hoped to utilize a 
means to get back on the board. Amazingly on August 11, 2006, 
NIOSH was notified by the White House that Dr. Dehart and Ms. 
Munn were to be reappointed for another 3-year term. While Dr. 
Dehart declined reappointment, Ms. Munn, not surprisingly, 
accepted.
    When the White House was asked why reappointment was so 
quickly offered to an individual who didn't even meet the 
statutory qualifications for serving on the board after the 
request of the Chairman of the Judiciary Committee for the 
reappointment of two qualified board members was ignored, the 
Administration never provided an explanation.
    The board currently has only two worker representatives and 
a reappointed member who has stated her position that none of 
these workers are sick because of their exposure to radiation.
    Obviously, an impartial review of the validity of the 
science used to determine whether to approve claims for 
radiation exposure won't be forthcoming from that particular 
board member.
    I strongly encourage those who police this program in the 
future to aggressively pursue balancing this board and 
legislation to provide for a more transparent appointment 
process appears to be the only real solution.
    A February 22, 2006 letter requested that DOL's Employment 
Standards Administration or ESA provide all documents related 
to the 5 options outlined in the OMB passback prior to the 
Subcommittee hearing on March 1, 2006. The Subcommittee 
received a box of about 4,500 pieces of paper from DOL on March 
17, 2006. None of them substantive information related to the 
request.
    After DOL complained that the request was overly broad, the 
Subcommittee reduced its request of the documents of 25 key DOL 
ESA staff. No further documents were received until the 
beginning of July. No documents or communications were received 
regarding the OMB passback, and no communications between Labor 
and OMB were forthcoming.
    The Committee was informed on July 21 that the office 
within DOL that handles the EEOICPA claims indicated to the 
Legislative Affairs Office that there was no need to provide 
any of the communications with OMB because they constituted 
internal budget negotiations--privileged documents not 
available to anyone.
    Labor was told by the Committee that ESA had misinformed 
them.
    In support of that position, the Subcommittee requested and 
received a congressional research analysis of the 
appropriateness of the document requests made to the Labor 
Department, which makes it clear that no privilege could be 
assigned to the documents in communications that were part of 
the Committee's inquiry.
    On the eve of a vote to authorize a subpoena to DOL, high 
level assurances were made to the Committee to provide all but 
a few documents to the Committee, and the rest were made 
available in a reading room for Committee viewing.
    HHS had withheld several binders and allowed all but one to 
be reviewed by Committee staff.
    It is the Committee's understanding that the binder 
withheld contained HHS's communication with OMB regarding the 
passback. So much resistance from these agencies fortifies the 
argument that their actions would not bear well under scrutiny. 
Those involved in this backroom manipulation of the program 
have destroyed the Government credibility again.
    This program was supposed to ensure workers that the deceit 
was over and the Government was finally going to do right by 
them. Those tasked with implementing the program have failed 
that purpose miserably, and they need to be exposed for what 
they have done.
    I will be including a record of the Committee's 
correspondence on our concerns in the hearing record as well as 
other pertinent documents that provide a clear view of the 
actions of those running this program.
    Under oath, the OMB witness on July 20, 2006 rejected each 
of these 5 options and assured us they were not pursuing any of 
them. We received the same assurances under oath on March 1st, 
2006, in DOL. Evidence included in both DOL and HHS-submitted 
documents or included in the documents withheld and only 
viewable to the Committee staff do not support those 
statements, and the hostile attitude of those running this 
program toward the claimants and their advocates gives me 
little confidence that there is any sincere efforts to change 
by these officials.
    Obviously, the babysitting of these individuals must 
continue and I encourage it wholeheartedly. Time is of the 
essence for fulfilling our promise to this quickly aging 
population of atomics weapons employees. Perhaps soon those who 
run this program will do the right thing and take care of these 
workers and their families competently and with an attitude of 
respect that is clearly not present at this time.
    At this time, the Chair recognizes the gentlelady from 
Texas, Ms. Jackson Lee, for purposes of an opening statement.
    Ms. Jackson Lee. Thank you, Mr. Chairman. Let me, first of 
all, thank you for joining me in persisting on what I think is 
a call for the restoring of the integrity of this program. 
Thank you for joining me and insisting that the Federal 
Government do the right thing. And thank you for your 
leadership on this issue.
    I echo and join the Chairman in announcing publicly that it 
is my fear that the Energy Employees Occupational Illness 
Compensation Program's integrity is in jeopardy.
    Mr. Chairman, I want to indicate to you that over the 
recess, I went to Texas City in Texas and saw the faces of 
individuals who have been impacted by the failure of this 
particular program to function.
    I looked in the faces of elderly persons who asked--and 
begged frankly--that we would come to their area and hear their 
stories and find out that they are nothing but great patriots, 
and good Americans, and they love their country, and they 
entrusted their hopes and dreams for their families, for their 
livelihood, and for their longevity to this great nation.
    I think it is a besmirching of the commitment that we make 
to Americans when they rise to the highest call, calling, and 
that is to serve America, that we have found ourselves in this 
quagmire.
    So I join you in the level of frustration that your 
accounting has generated. And I am hoping and I view and feel 
that our collective effort before we end the 109th Congress, 
will see fruition. And so I begin by thanking the witnesses for 
being here. It looks like we are climbing up the rough side of 
the mountain, but I do believe that we have a collective body 
of interested Members of Congress who are willing to pursue the 
Federal Government doing the right thing.
    The Department of Energy and its predecessor, the Atomic 
Energy Commission, have employed tens of thousands of workers 
to develop, build and test nuclear weapons. The Energy 
Employees Occupational Illness Compensation Program Act of 2000 
provides compensation for workers who have contracted radiation 
related cancers, beryllium disease or silicosis disease from 
exposure to radiation at these work sites.
    They may be eligible for a lump sum payment of $150,000 and 
prospective medical benefits. In processing radiation-related 
cancer claims, the National Institute for Occupational Safety 
and Health is required to estimate a workers exposure to 
radiation, which is referred to as a radiation dose.
    Sometimes this is not possible. During the early years of 
the nuclear weapons program, some of the workers were not 
monitored for radiation exposure, and records have been lost. 
We found these cases in similar situations of compensation 
requests throughout the other history of the United States.
    Remember, folks, we did not always have the Internet or the 
computer. We didn't always have the Blackberry. People were 
either writing things down or assuming that the immediate 
supervisor knew the story.
    And of course, we have not yet found the cure for aging and 
loss of life through aging. And people have passed on who knew 
the stories, companies have closed who had the information, 
documents have been either lost, displaced or disposed of 
because history has marched on.
    The Act provides a remedy for cases in which it is not 
feasible to estimate radiation doses. But it is clear that the 
health of workers may have been in danger by radiation 
exposure. They can petition to be designated as members of a 
Special Exposure Cohort which provides an unrebuttable 
assumption certain cancers are work related. Members of a 
Special Exposure Cohort may be eligible for benefits if they 
have 1 of 22 specified radio sensitive cancers, and they must 
have worked as a covered facility for at least 1 year in a job 
that exposed them to radiation.
    I deviate for a moment and cite as an example Agent Orange, 
recognizing that we first challenged the existence of Agent 
Orange disease after Vietnam and after long studies and 
determinations in lost records and misinformation, we have 
discovered that that is a valid disease, or exposure that 
Vietnam vets had and Mr. Chairman, while I was home in the 
District again, a Vietnam vet who was in Thailand has now 
raised the specter that that group was left out, and those 
Agent Orange planes landed on those airfields, and he is, of 
course, by his medical doctor, determined to be 100 percent 
disabled, but yet paperwork and lack of designation has him as 
a case that we have to pursue in front of the Veterans' 
Affairs.
    I use that as an example because this is what these cohorts 
have been facing. In an internal passback memorandum from the 
Office of Management and Budget to the Department of Labor, OMB 
states that the Administration will convene a White House-led 
interagency work group to develop options for administrative 
procedures to contain the growth in the costs of the program, 
cost over patriotism and the service of these patriots.
    OMB states further that the discussions would include but 
not be limited to a requirement for the Administration's 
clearance, of Special Exposure Cohort determination, addressing 
imbalances in the membership of the Advisory Board, requiring 
an expedited review by outside experts of the Special Exposure 
Cohort recommendations by NIOSH, requiring NIOSH to apply a 
conflict of interest rules and constraints to the Advisory 
Board's contractor, which we see by the Chairman's remarks, 
that has not been done, and requiring that NIOSH demonstrate 
that its site profiles and other dose reconstruction guidances 
are balanced.
    I am concerned that such cost cutting measures would 
conflict with the Special Exposure Cohort review procedures 
established by the Compensation Program Act and that it would 
result in unwarranted denials of compensation applications.
    Instead of cost-cutting measures, the Administration should 
be considering whether measures are needed to increase the 
number of applications that are granted. On average, 
approximately 70 percent of the applications are denied.
    We are not serious. We are playing at the game of 
responding to the needs of the faces that I saw in Texas City, 
Texas this past fall.
    Government witnesses have testified that cost containment 
is not a factor in deciding which claims to pay. But this has 
not eliminated concern. The Subcommittee asked DOL to provide 
all documents related to the 5 options outlining the OMB 
passback. The Subcommittee received a box of about 4,500 pieces 
of paper from DOL, but none of these documents provided the 
necessary information.
    When this was brought to DOL's attention, its response was 
that the request was overly broad. The Subcommittee reduced its 
requests to the documents of 25 key DOL ESA staff. But the 
Government still would not cooperate fully. The debate reached 
a point at which a subpoena was considered. Most documents were 
made available to the Subcommittee, but the integrity of the 
application process is still in doubt.
    I have introduced a bill to address these problems. The 
Energy Employees Occupational Illness Compensation Program 
Improvement Act of 2006, H.R. 5840. Among other things, it 
would shift the authority from making Advisory Board 
appointments to the Congress. It would require HHS Secretary to 
abide by the recommendations of the Advisory Board unless there 
is a clear error. It would establish enforceable conflict of 
interest requirements with respect to NIOSH's dose 
reconstruction contractors.
    Also, it would eliminate unfairness by making benefits 
available to some subcontractor employees who worked at atomic 
weapons employer facilities, but presently are not covered by 
the Act.
    I know that we want to do the right thing. I would imagine, 
Mr. Chairman, if we interviewed individual members of the 
Administration, I give them the benefit of the doubt, they 
would know that they have not been completely forthright in 
doing the right thing, and they would acknowledge that we have 
been asking the important and hard questions, and our questions 
need to be answered, documents need to be produced, and as 
well, we need to move forward on a reconstructive program.
    I would ask prospectively as my colleagues are listening 
that we would begin to hold hearings on H.R. 5840, a field 
hearing as well, but more importantly, that we move forward and 
address the concerns of patriotic Americans.
    Mr. Chairman, thank you again for your leadership and I 
yield back.
    Mr. Hostettler. I thank the gentlelady. At this time, I 
will introduce members of our distinguished panel of witness.
    Laurence Fuortes is professor of occupational and 
environmental health at the college of public health at the 
University of Iowa.
    Dr. Fuortes received his B.S. In biophysics at Northern 
Illinois University and his M.D. At the University of Illinois. 
He has published dozens of article on a wide range of medical 
subjects, though much of his research has focused on 
occupational health hazards and the development of potential 
policy solutions.
    John Mauro is the project manager for Dose Reconstruction 
Consulting Services for the Advisory Board on Radiation and 
Worker Health under EEOICPA. He has personally performed eight 
dose reconstruction reviews and directed 60 other reviews. Dr. 
Mauro has appeared before the Advisory Board at every public 
bimonthly meeting of the board and has presented and defended 
the audit reports of the audit contractor, Sanford Cohen & 
Associates.
    He has served as the principal investigator for the 
preparation of the environmental and safety analysis reports 
for 10 commercial nuclear power plants.
    Kathy Bates is a surviving claimant under the Energy 
Employees Occupational Illness Compensation Program Act. She 
attended the University of Tennessee and graduated with honors 
in 1984 with a degree in computer science. She has 22 years of 
experience as an information technology professional. Mrs. 
Bates is married and has two children and she resides in 
Knoxville, Tennessee.
    Richard Miller is a senior policy analyst at the Government 
Accountability Project. Mr. Miller has led that group's efforts 
to reform EEOICPA as part of the fiscal year 20O5 Defense 
Authorization Act.
    Mr. Miller is an expert on the program, having been 
actively involved in creating the original EEOICPA law. He has 
testified before this panel on the OMB passback document on 
containing the cost of EEOICPA.
    In 2003, he appeared before the Senate Committee on Energy 
and Natural Resources where he testified on the flawed 
implementation of EEOICPA by the Department of Energy. He holds 
a B.A. in industrial and labor economics from the University of 
Massachusetts.
    Lady and gentlemen, you will see that we have a time 
system. We respectfully ask that you limit your oral statements 
to 5 minutes or as close as possible to that.
    Without objection, your entire written statement will be 
made a part of the record.
    Dr. Fuortes, you are recognized for 5 minutes for an 
opening statement.

 TESTIMONY OF LAURENCE FUORTES, M.D., PROFESSOR, DEPARTMENT OF 
   OCCUPATIONAL AND ENVIRONMENTAL HEALTH, UNIVERSITY OF IOWA

    Dr. Fuortes. Thank you. I have been working with several 
AEC DOE sites in Iowa for about 5 years and it has been one of 
the most changing--life-changing experiences of my life. I have 
been very affected by this work.
    On behalf of these workers and the families of those who 
are deceased, I would like to thank you very much for this 
oversight of the policies in response to the health risks and 
resultant diseases experienced by this workforce.
    They labored under a weight of secrecy and uncertainty 
regarding the health risks of nuclear weapons work. We owe 
these workers a debt of gratitude and as you have suggested, a 
fair and open system.
    When this program began, the workers in Iowa said that 
their Government was just waiting for them to die. And sadly 
some of our actions appear to bear this out.
    On a positive note, scores of workers' lives have been 
saved by the early detection of cancers and other diseases 
through the DOE medical screening process.
    Unfortunately, the tone of the OMB memo that led to these 
hearings is that some feel the risks to these early era workers 
have been overstated. Worker protections may have been 
interpreted as adequate in the early era, but they are clearly 
not adequate by today's standards. This was prior to the 
studies of Hiroshima and Nagasaki survivors and radium dial 
painters and prior to decades of biological studies of 
cancerous effects of radiation.
    It was also prior to technologic advances in radiation 
monitoring before the OSHA Act.
    These workers are disadvantaged in the SEC anddose 
reconstruction processes, by a lack of transparency and a lack 
of access to expertise.
    In the SEC process, the petitioners are asked to prove the 
negative, something that cannot be proven. All the while, they 
are not given access to the same data that NIOSH and its 
contracts have. And the petitioners have to rely on a 
cumbersome FOIA process to try to get dose information.
    It took 3\1/2\ years just for the SEC rules to be written. 
Meanwhile many of these elderly workers died. In the Iowa case 
after the Advisory Board went on record in April of 2005 
agreeing that accurate, defensible, and timely dose 
reconstructions could not be performed, there was a flurry of 
activity, which seemed to be designed to frustrate these 
workers.
    SEC and claimed decisions should not be based on financial 
implications, but on a fair balanced scientific judgment. The 
petitioners are further disadvantaged by the dense technical 
aspects and jargon of health physics and typically are asked to 
take, at face value, the dose calculations made by NIOSH 
contractors.
    The petitioners deserve a process independent of bias or 
political pressure. The board must be scientifically based and 
its judgments must be impartial and there must be a 
representation of environmental and radioepidemiology 
expertise.
    The SEC process has also not addressed risks from residual 
radiation. At the Ames lab, one worker described to us his 
tasks in the 1960's of tearing out the exhaust ventilation 
systems and the building materials of one of the most highly 
contaminated areas. All of his co-workers are now deceased from 
cancer. When we shared this information with the Ames 
laboratory, their director and health and safety staff helped 
us immediately to amend our SEC petition, submit it to NIOSH to 
extend the period of coverage.
    This issue of residual risk is pertinent in all of the DOE 
sites probably that we are dealing with radionuclide 
processing.
    As regards the dose reconstruction claims processes, there 
is a perceived problem of this being litigious which places 
unfair burdens of proof on the claimants. Although the dose 
reconstructions developed by NIOSH give the numerical 
appearance of precision, the process is often not exact or 
scientifically defensible.
    Take, for example, an Iowa worker who received a 
probability of causation of 48 percent for a radiogenic cancer 
and imagine his disbelief when he amended his claim based on a 
newly-diagnosed radiogenic cancer and the NIOSH recalculated 
probability of causation is now 32 percent.
    Despite the best intentions of claimant friendliness, this 
DOE claims process operates disturbingly like a conventional 
insurance claims process, functionally placing obstacles in the 
claimants path. This claims process must also be made 
transparent and subject to review and oversight.
    I know of several cases of people whose claims were denied 
based on faulty assumptions by the Department of Labor. 
Examples include a Kansas City native from the Bendix plant 
whose proof of employment came from the headquarters in New 
Jersey. He was denied. Another employee whose proof of disease 
came from a CT scan was denied because under the language of 
the Act they required a CAT, CAT scan. Others denied because 
diseases such as Polycythemia Rubra Vera were decided by the 
claims examiners not being covered under the Act, where as, in 
fact, they are. There are numerous such examples.
    These workers are typically elderly and not well versed in 
health, physics, medical or legal terminology, and they are 
easily frustrated and dissuaded from pursuing valid claims. 
Cases such as these, I mentioned, suggest a need of a 
systematic review of denied claims and a change in policy from 
placing the burden of proof entirely on claimants to a system 
which claimants are assisted in identifying and locating 
requisite information.
    All of these workers who were exposed to radiation 
Beryllium and related toxins in our atomic weapons industry 
deserve no less than an equitable, just and open approach to 
the evaluation of causality and compensation for work-related 
disease. Thank you very much.
    Mr. Hostettler. Thank you, Dr. Fuortes.
    [The prepared statement of Dr. Laurence Fuortes follows:]

               Prepared Statement of Dr. Laurence Fuortes

    Honorable Members of the Subcommittee on Immigration, Border 
Security and Claims, thank you for the opportunity to share with you my 
perspectives on the Energy Employees Occupational Illness Compensation 
Program Act (EEOICPA) and the Special Exposure Cohort process. My name 
is Laurence Fuortes, I am a physician and Professor of Occupational and 
Environmental Health and of Internal Medicine at the University of Iowa 
(UI). For approximately five years, my staff and I have been working 
with former Atomic Bomb assembly workers and more recently Uranium and 
Thorium processing workers in Iowa and surrounding states. Through a 
Department of Energy program, UI provides medical screening 
examinations and medical care to former workers, and we have gotten to 
know many of these workers quite well.
    On behalf of these former Atomic Energy Commission and Energy 
Department workers and the families of those no longer alive I thank 
you for addressing questions of appropriate policy in response to 
recognized health risks and disease experienced by this workforce. 
These workers labored under a great weight of secrecy, as well as 
significant uncertainty, in regards to health risks associated with 
employment in the nuclear weapons industry. We owe these workers a 
tremendous debt of gratitude for their patriotism, placing themselves 
in harms way in defense of our country during both World War 2 and 
subsequently during the Cold War.
    One of the primary things I hope to convey at these hearings is a 
sense of the effect of these programs on individuals as well as the 
community. I have spent hours with grown women and men in tears as they 
helped me identify those of their coworkers who are deceased. Without 
the benefit of a funded scientific study, I would have to say that 
anecdotally we are seeing a higher than expected rate of cancers and 
lung disease in this population, (as compared to what I have 
experienced in other medical screenings). These workers and their 
families said at first that the government was only waiting for them to 
die. Sadly the facts and history appeared to bear this out. The 
impression among many workers and their families is that the workers 
had been put at risk, made ill, and died as a result of their work, yet 
the government was merely going to stall and deny. Throughout our and 
other Former Worker Programs scores of former workers lives have 
fortunately been saved as a result of early detection of cancers and 
other conditions.
    The approval of the SEC for the atomic weapons workers at the Iowa 
Army Ammunition Plant has rekindled the faith and participation in 
government.
    To adequately understand the significance of these programs, it is 
first necessary to understand that safe working conditions in the 
earliest years of nuclear weapons production were severely lacking. 
Worker protection in terms of radiation shielding and monitoring--
although state of the art for the time--was not adequate. Production 
was the primary focus for the operating contractors. The Health and 
Safety staff at these facilities used the best available knowledge and 
directives from the AEC to address and minimize workers' health risks. 
This was prior to the epidemiologic data that resulted from follow up 
studies of Hiroshima and Nagasaki victims and the radium dial painters. 
This was prior to decades of biological study which enlightened the 
field significantly as regards risks of ionizing radiation. There have 
also been dramatic technologic improvements in radiation monitoring. 
The measures taken to minimize exposures to these early workforces 
would clearly be deemed inadequate and inappropriate today. This was 
decades previous to the Occupational Health and Safety Act and the 
protections it brought to the nations workforces. Under an oath of 
secrecy, there was little opportunity or incentive for complaints 
despite a real sense of uncertainty regarding their risks.
    I am concerned that in addition to having been placed at historical 
risk in defense of our country, these workers are now at bureaucratic 
risk of being frustrated and disadvantaged by the processes for 
implementing EEOICPA. Both in the SEC process and in the dose 
reconstruction process there is a lack of transparency and access to 
expertise, which places petitioners and claimants at a tremendous 
disadvantage.
    SEC. In the SEC case petitioners are tasked with proving the 
negative--that something cannot by definition, be proved. As a logical 
or philosophic process this is quite difficult and workers and 
petitioners need assurances that this process is workable and 
transparent. Workers and their representatives often have to rely on a 
cumbersome FOIA process and are unable to obtain the same data which is 
used by NIOSH and it's contractors in the creation of Site Profiles and 
Dose Reconstructions.
    Dose Reconstructions. There is at least a perceived problem of this 
being a litigious process and one can understand why workers feel 
wronged by the unfair burdens of proof placed upon them. The Dose 
Reconstructions developed by NIOSH provide the appearance of precision, 
but this process is not exact nor at times defensible. As an example, a 
worker at the Iowa Army Ammunition Plant was determined to have a 48% 
probability of causation of a radiogenic cancer attributable to 
exposures at the plant. Imagine this worker's disbelief, when amending 
their filing based on a second and newly diagnosed radiogenic cancer, 
on being told that the newly calculated probability of causation 
dropped to 32%.
    As background, allow me to describe the industrial processes, 
exposures, historical health and safety procedures and reflections on 
the SEC petition experiences at the two facilities I know best.
    In the case of the Iowa Army Ammunition Plant, in Burlington, Iowa, 
workers were exposed to ionizing radiation from enriched and depleted 
uranium, plutonium, and tritium in the course of assembly and 
disassembly of nuclear weapons from 1949 until 1975. Workers routinely 
handled the radioactive components directly in their hands with only 
cotton gloves and without lead aprons. They had little or no radiation 
monitoring and little or no shielding from the radiation.
    There are no reports documenting the internal doses of 
radionuclides in this workforce at any time. Only limited external 
dosimetry was provided to record the doses of external penetrating 
radiation to which such workers were exposed.
    A Special Exposure Cohort petition was submitted on behalf of these 
workers on the basis of a near total lack of relevant exposure or 
estimated dose data. The SEC petition process was long and frustrating 
to the community. It took 3 1/2 years just for the rules for evaluating 
SEC petitions to be developed. The argument was made by contracted 
Health Physicists that despite the lack of individual exposure data, 
doses could be reconstructed based upon classified information. All the 
subsequent cancer claims, even those considered radiogenic, resulted in 
denials initially. Statements were made by NIOSH contractors that this 
was a low exposure workplace despite a lack of records and without the 
benefit of worker interviews. This perceived a priori position seemed 
to permeate the actions and statements made early on by NIOSH and their 
contractors and may have resulted in resistance to take in to account 
information from workers which contradicted the a priori assumptions 
noted. NIOSH had stated that they could reconstruct the doses of 
workers at IAAAP despite a near total lack of exposure data by dint of 
theoretical models and data from workers at another worksite, Pantex, 
handling different warheads, in a different era. Petitioners are 
further disadvantaged by the technical nature and jargon of health 
physics and typically must take at face value the more technical 
calculations made by NIOSH. The Radiation Advisory Board is beset with 
complicated decisions and would benefit from the addition of persons 
recognized for strong environmental epidemiology skills. The functions 
of the Radiation Advisory Board and of their technical contractor, 
SC&A, must be guaranteed to be independent of any real or perceived 
bias of involved federal agencies. SEC and claims decisions should not 
be based on financial implications but fair and balanced on scientific 
judgment.
    There were significant weaknesses in NIOSH's assumptions that they 
could reconstruct dose without worker exposure data. Examples include 
NIOSH's use of ambient outdoor levels of radon gas for calculating 
respired doses experience by underground workers in Iowa despite the 
fact that Iowa has among the highest geologic sources and reported 
indoor air concentrations of radon. NIOSH assumed that those badged had 
the highest exposures. Production workers reported a less than 
systematic radiation monitoring program and a pattern of inspectors and 
engineers with less hands on responsibility for assembling weapons were 
more likely than others to be monitored. It turns out that those 
workers exposed to the greatest numbers of warheads at any time and for 
whom the area monitoring reflected the highest exposure, (guards), were 
never monitored.
    In April 2005 the President's Advisory Board on Radiation and 
Worker Health went on record agreeing with the workers' petition that 
asserted that accurate, defensible and timely dose reconstructions 
could not be performed.
    The approval of the SEC has rekindled the faith and participation 
in government.
    At the Ames Laboratory, former workers processed African 
pitchblende ores and radioactive thorium for use in the nuclear weapons 
program from 1942-1955. The scientific, technical, and administrative 
workers at the Ames Lab were involved in a heavy industry processing 
tons of uranium and thorium. This process generated large quantities of 
radioactive dust, and workers performed their duties without personal 
protection, engineering controls or radiation monitoring to protect 
them from radionuclide exposures and risks. Exposure data are available 
for small subsets of the workforce from very limited points in time, 
and without supporting documentation regarding both work and dosimetry 
protocols and methods. Review of Ames Lab medical records from 
individual workers involved in these processes has revealed no personal 
dosimetry records. Workers were exposed to extremely high levels of 
airborne uranium and thorium dusts, radon and thorium, even relative to 
the standards in effect during the time. In fact, some workers were 
excreting hundreds of micrograms of uranium per day in their urine.
    My impression from the tone of the OMB memo that led to these 
hearings is that there is a sense among some that the risk to these 
workers has been over stated or that their employment resulted in 
minimal risk. Unfortunately, because of a severe lack of exposure 
records and the deaths of many potential claimants, it is not feasible 
to conduct valid dose reconstructions for the Iowa Army Ammunition 
Plant, IAAAP, facility or Ames Laboratory workers. At IAAP workers were 
in intimate contact with strong sources of radiation, handling the 
fissile central components of these weapons inches from their bodies 
without lead aprons. Work histories of Ames workers include reports of 
``blow-outs'' with dissemination of both uranium and thorium from 
uncontrolled exothermic reactions occurring on a routine basis. These 
exposures would not be tolerated by any means under today's 
expectations of acceptable risk. Throughout our and other Former Worker 
Programs scores of former workers lives have fortunately been saved as 
a result of early detection of cancers and other conditions.
    The SEC process has not fully addressed the risk of residual 
radiation among the workers performing maintenance and repair of these 
facilities. Recently an Ames Lab worker described to me his tasks 
including tearing out all the equipment, ceilings and exhaust 
ventilation in the building in which tons of thorium had been smelted 
and refined. The Ames Laboratory health and safety staff assisted in 
submitting an update to the Ames SEC petition to address this issue and 
to ask NIOSH to extend the period of coverage of the Ames SEC and add 
this subset of workers. The question of residual radiation risk is 
relevant to many of the AEC/DOE sites involved in manufacture and 
refining of radionuclides.
    As regards the DOL claims process, despite the best of intentions 
for claimant friendliness, it operates at times disturbingly like a 
conventional property or health insurance claims process and 
functionally places obstacles in the paths of claimants. The claims 
process should also be as transparent as possible given any 
confidentiality constraints.
    I know of at least ten people whose claims were denied and whom 
upon review of their cases and a letter of clarification to the 
Director of the DOL Division of EEOICP resulted in these denials being 
promptly rescinded. These denials resulted from such things as:

          Proof of employment coming for a DOE site worker 
        coming from the parent company headquarters in New Jersey 
        instead of the plant site in Kansas City.

          Evidence of disease coming from a 'CT' scan and being 
        denied because the term used was not 'CAT' scan.

          Statements that specific diseases--Polycythemia Vera, 
        MAST cell lymphoma, myelodysplasia--are not covered under the 
        SEC list of presumptive cancers when in fact they are.

    These workers are typically elderly and not well versed in 
medical or legal terms and are unfortunately easily frustrated 
and dissuaded from pursuing valid claims. Cases such as those 
above suggest that there would be a benefit to a systematic 
review of denied cases and a change in policy from placing the 
burden of proof entirely on the claimants to a system in which 
claimants are assisted in identifying and locating missing 
information.
    All the workers who were exposed to radiation, Beryllium 
and related toxins as part of our Atomic weapons industry 
deserve no less than a fair and open approach to the evaluation 
of causality and compensation for work related disease.

    Mr. Hostettler. Dr. Mauro.

 TESTIMONY OF JOHN MAURO, PROJECT MANAGER, DOSE RECONSTRUCTION 
  CONSULTING SERVICES, ADVISORY BOARD ON RADIATION AND WORKER 
        HEALTH UNDER EEOICPA, SANFORD COHEN & ASSOCIATES

    Mr. Mauro. Thank you very much. Good afternoon. My name is 
John Mauro. I am an employee at Sanford Cohen & Associates 
located in Vienna, Virginia.
    For the past 3 years, SC&A has served as the technical 
support contractor for the Advisory Board on radiation worker 
health. I serve at the SC&A as project manager for that 
contract.
    I would like to thank the Subcommittee for inviting me here 
today to discuss two topics. The first pertains to emerging 
issues related to the review of SEC petitions. And the second 
is to respond to allegations made during the March 1st, 2006 
hearing regarding the possibility that SC&A may have a conflict 
of interest with respect to the, some of the work we are 
performing for the Advisory Board.
    With respect to the first topic, I have prepared a written 
statement that addresses four separate issues. However, for the 
sake of expediency, it is convenient to combine these issues 
into a single issue that has to do with finding and then 
dealing with inadequacies in the radiation protection records 
for workers at DOE and AWE facility.
    When all is said and done, one of the most important 
responsibilities we all have under the Act is to identify the 
nature and extent of the deficiencies of the radiation 
protection and other records at each facility and determine if 
it is scientifically plausible to find a way to deal with these 
deficiencies and reconstruct the doses to all workers in a 
manner that is scientifically robust and claimant favorable. If 
we cannot do this for any group of workers, we must recommend 
an SEC petition.
    To date, SC&A has reviewed numerous SEC petitions and NIOSH 
evaluation reports of those petitions. The single most 
important issue that continues to emerge is gaining a complete 
understanding of the myriad operations that occurred at a 
facility over time and understanding where the gaps exist in 
the records that challenge our ability to reconstruct doses.
    I don't think anyone realized that this program, when it 
began, how difficult it was going to be to identify those gaps. 
For example, at the Y-12 and Mallinckrodt facilities, we all 
knew that uranium exposures were important and a highly 
concerted effort was made to understanding the uranium 
exposures that occurred at these facilities. However, during 
our review of these petitions for these facilities, it became 
apparent that there were many more radionuclides and activities 
that took place at these facilities that needed to be 
understood.
    It is essential that we all recognize the complexity of 
these facilities and make sure we do not overlook potentially 
important sources of exposures and exposure scenarios, 
especially during the early years.
    We need to have complete and unfettered access to all DOE 
historical records in order to achieve a level of confidence 
that we have not missed anything important.
    I believe the single most important issue that has emerged 
to date is the recognition that it is very difficult to gain a 
full understanding of the myriad activities that took place at 
these facilities, and that NIOSH, the board and their 
contractors, SC&A, must accept this reality and the challenges 
that go with it.
    Once we understand the extent and complexity of the 
activities that took place at a given facility, and the 
magnitude of the deficiencies and the gaps, we must develop 
robust decision criteria for determining when we can develop 
end develop methods that can fill the gaps in a scientifically 
defensible and claimant favorable manner and when we cannot. I 
do not believe we have yet reached the point where we all agree 
on the process by which this best can be accomplished.
    With respect to the second issue, I disagree with the 
statement--the second issue being the conflict of interest 
statements that were made at the--during the previous hearings. 
I disagree with the statements made by Mr. Hallmark at the 
March 2006 hearing that SC&A has a conflict of interest.
    In my prepared statement, I explain why I believe Mr. 
Hallmark's statements are not correct.
    The bottom line is, and I am looking for one way to 
convince the Subcommittee, is that when you review our record 
of findings, just about 40 percent of our findings are that the 
dose reconstruction deficiencies have either--have 
underestimated and about 60 percent have found overestimated. 
So I believe we have been very objective with respect to how we 
approach the problem. And we do not have a conflict of 
interest. I am not going to go into the details. They are all 
in my record.
    There are a couple of other matters I would like to 
discuss, but I can see that my time is running out. And I would 
like to thank you for the opportunity to speak to you.
    Mr. Hostettler. Thank you, Dr. Mauro.
    [The prepared statement of John Mauro follows:]

                    Prepared Statement of John Mauro



    Mr. Hostettler. Mrs. Bates.

 TESTIMONY OF KATHY BATES, SURVIVING CLAIMANT UNDER THE ENERGY 
    EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT

    Ms. Bates. I would like to thank Chairman Hostettler and 
Ranking Member Jackson Lee for inviting me to testify today. My 
name is Kathy Bates, and I am representing my mother Mildred 
Gore, my brothers James and Gregory Gore and myself with 
respect to our EEOICPA claim under subtitle B for my father, 
James Gore.
    My father worked at Y-12 in Oak Ridge, Tennessee as a 
production engineer in nuclear weapons fabrication from August 
1988 to October 1994. He was diagnosed with basal cell 
carcinoma in July 1992. He was diagnosed with ocular melanoma 
in July 1997 and died in April 2001.
    My testimony briefly summarizes our experience with the 
claims process and the apparent lack of quality control in 
NIOSH and DOL. My mother filed a survivor claim in January 
2003. In July 2005, she received a draft dose reconstruction 
from NIOSH and a recommended decision from DOL in November 2005 
stating the claim was denied. Both the draft reconstruction and 
DOL's recommended decision contained significant errors. The 
first major errors that the draft dose reconstruction stated 
that there were no records of monitoring for my father and no 
information relating to his job title, job responsibilities or 
locations where he worked.
    My mother told NIOSH that he was a monitored employee but 
this was given no credit. Nonetheless, he was assigned a dose 
based on NIOSH's assumption that he was not regularly 
monitored.
    The second major error which I identified for NIOSH in 
February 2006 is that NIOSH mistyped my father's Social 
Security number when they requested records from DOE. As a 
result DOE, found no records for my father. The third major 
error is that the recommended decisions stated ``the 
probability of causation for the primary colon cancer was 
determined to be 25 percent.'' Ny father did not have colon 
cancer nor was he diagnosed with colon cancer.
    We filed an appeal with DOL in January 2006 based upon the 
fact that NIOSH stated they had no records or information for 
my father, and thus any dose estimate would have been in error. 
I spoke at the Advisory Board public session in January 2006. 
At that meeting, we were pleased to meet senior administrators 
from DOL NIOSH and ORAU who gave us their personal assurances 
that these problems would be corrected. This level of attention 
certainly exceeded our expectations.
    In June of 2006, we received a letter from DOL stating our 
appeal was approved. I had filed a Freedom of Information Act 
to DOE and did obtain records for my father, including his 
radiation exposure records, which I e-mailed to NIOSH in August 
2006. I also provided contact information on co-workers and 
identified the building he worked in.
    I obtained an e-mail acknowledgement of receipt and NIOSH 
indicated they would put this information into the 
administrative file. I thought the problem was on track and it 
would be fixed.
    On November 22nd 2006, we received the second draft dose 
reconstruction from NIOSH. The report stated there were no 
radiation exposure records for my father end quote, Mr. Gore's 
work location is not known. NIOSH's dose reconstruction report 
stated ``external electron radiation not considered in this 
dose reconstruction because Mr. Gore did not work directly with 
radioactive materials and any external doses would have been 
attributable primarily to photons.''
    Despite sending NIOSH's radiation exposure records, NIOSH 
continued to contend that he did not work directly with 
radioactive materials. The net result of course is that his 
dose reconstruction is not correct again. To quote my mother, 
``it is as if your father never existed.''
    I do not know if NIOSH is going to immediately address 
these problems and start their dose reconstruction for the 
third time. Even if a dose reconstruction is completed for my 
father using the records available, I can honestly say at this 
point that we have little or no faith in the validity of the 
results.
    Is our claim experience an aberration or are there real and 
systemic problems with the EEOICPA claims process that may have 
resulted in the unwarranted denial of other claims? We hope 
this Subcommittee will continue its oversight and enact 
legislative reforms such as those in Representative Jackson 
Lee's bill.
    In this context, we have several recommendations. We urge 
you to extend the responsibility for the DOL's office of the 
ombudsman to include subtitle B and authorize the ombudsman to 
act as an advocate on behalf of claimants seeking benefits. The 
Special Exposure Cohort provision should continue to receive 
the highest level of attention. For many claimants, the SEC 
process may be the only hope of receiving a fair assessment. We 
recommend that the role of the Advisory Board should be 
extended to execution of the claims process itself. At present, 
it does not appear that there is an external organization not 
controlled by the agencies which is responsible for overall 
administrative and claimant process audits.
    I hope that my testimony today will be of value. We mourn 
the loss of my father every day. We were blessed to have such 
an extraordinary man as our father. We are proud of his service 
to our country as a U.S. Navy veteran and of his service, 
however small, in ensuring the safety and security of the 
United States of America as a DOE employee for so many years. 
On behalf of my family and myself, I thank you again for your 
efforts to support key improvements in this program and 
allowing me to testify here today. Thank you.
    Mr. Hostettler. Thank you Mrs. Bates.
    [The prepared statement of Kathy Bates follows:]

                   Prepared Statement of Kathy Bates




    Mr. Hostettler. Mr. Miller.

 TESTIMONY OF RICHARD MILLER, SENIOR POLICY ANALYST GOVERNMENT 
                     ACCOUNTABILITY PROJECT

    Mr. Miller. Before I begin my testimony, I would like to 
just take an informal moment to offer a personal thank you to 
the Chairman and to the Ranking Member for your efforts this 
session of Congress to unmask the problems facing nuclear 
workers seeking justice from a Government that had put them in 
harm's way.
    And Mr. Chairman, I realize that you will not be returning 
next year, but your willingness to pursue two additional 
oversight hearings in this lame-duck session of Congress is 
particularly noteworthy and it serves an important role in 
laying the groundwork, and I believe creating momentum for 
legislative reforms next year. And we genuinely thank you both.
    Today my testimony will assess the Department of Labor's 
efforts to pursue initiatives that would reduce benefits to 
sick nuclear workers, particularly new Special Exposure 
Cohorts, two, to review the Administration's failure to 
constitute the Advisory Board on radiation and worker health in 
conformance with the law, and three, to highlight emerging 
issues that are threatening the integrity of the audit process.
    At the Subcommittee's March 1 hearing regarding the OMB 
passback to DOL, a document which outlined five options for 
limiting Special Exposure Cohort, the Department of Labor's 
witness, Shelby Hallmark, stated, and I quote, ``cost 
containment is not part of any strategy or involvement that the 
Department of Labor has had in this process.'' Excerpts of e-
mails under preparation for the Office of Management and Budget 
to use in the passback, which were made available to me by the 
Subcommittee in preparing for this hearing state, ``the single 
most effective way to prevent billions of dollars in spending 
is by requiring HHS to clear its determinations to add 
additional employees to the SEC, with the OMB, after an 
opportunity for interested agencies, such as the Department of 
Labor, to comment on the analysis and determination.''
    The Department of Labor has actively led lobbying efforts 
to reduce benefits paid out under NIOSH's Special Exposure 
Cohort regulations, with respect to Special Exposure Cohort 
bills covering facilities in Iowa, Missouri, New York and 
Colorado, Mr. Hallmark says in an e-mail, ``we should do 
everything possible to oppose these SEC amendments.'' and his 
entire logic is budget driven without regard to the data 
deficiencies.
    The Department of Labor has also disparaged the Advisory 
Board on Radiation and Worker Health. Excerpts of an e-mail 
state, and I quote, ``the Advisory Board has totally failed to 
take a balanced approach to examining NIOSH activities.'' And 
an October 2005 memo under preparation for the Office of 
Management and Budget the Department of Labor recommended that 
the Advisory Board be ``refreshed.''
    Excerpts from the e-mail state ``we believe replacing these 
members could provide an opportunity to add board members 
willing and able to advocate a scientifically valid approach in 
carrying out NIOSH's responsibilities under EEOICPA.'' And 
given DOL's stated agenda, this appears to be a simple case of 
desiring to pack the courts in order to oppose SEC designations 
all wrapped up in the pretext of scientific validity.
    In sum, Mr. Hallmark's words in the March hearing, cost 
containment is not part of any strategy or involvement that the 
Department of Labor has had in its process are contradicted by 
documents uncovered by this Subcommittee.
    More damaging is the DOL's loss of credibility as an 
impartial claims administrator. Austin Smythe, acting Deputy 
Director of OMB, testified before the Subcommittee on July 20, 
2006, ``we are not pursuing any of these items that were listed 
in the passback.'' It was inappropriately leaked. It has now 
been inappropriately characterized as Administration policy 
which it is not. And yet, despite Mr. Smythe's testimony, the 
OMB passback was put on the agenda for a joint NIOSH DOL 
meeting held in January 2006, months after the OMB passback was 
issued.
    There were indications that Mr. Hallmark may have moved 
forward with a sequel to the OMB passback. Judiciary Committee 
notes from an early February 2006 e-mail communication from 
Shelby Hallmark to Melissa Benton at the Office of Management 
and Budget raises a red flag. An excerpt states ``I am 
uncomfortable with even an unofficial sharing of my briefing 
piece for today's meeting with my second floor people,'' which 
is the Secretary of Labor. ``but if you promise not to spread 
it and if you don't use the language in your document such that 
NIOSH will know where the verbiage came from, I will share it, 
but I am still smarting from your citation of your ideas in the 
budget passback as having been suggested by the employment 
standards Administration.'' and he asks, ``is that agreeable?''
    Well, we would urge the Subcommittee to secure this 
briefing paper and to ascertain its implementation status so we 
know what he was referring to.
    The Department of Labor's benefits containment agenda has 
found its way into the day-to-day adjudication of claims. In 
October of 2005, the Department of Labor began sending certain 
compensable claims back to NIOSH, ``based on increasing DOL 
management concern over a potential increase in compensable 
claims for cancers perceived as normally or previously not 
compensable.''
    The Director of the Department of Labor's final 
adjudication branch remanded cases back to DOL without ever 
telling claimants their cases were being second-guessed by DOL. 
In fact, one DOL e-mail says, when we send remand orders to 
claimants, I don't want them to know they are part of a 
``management plan.''
    To the extent there are errors, such as work history or 
incorrect cancer diagnoses that are within the ambit of the 
Labor Department's regulations, then DOL clearly has a role 
here. But an internal DOL e-mail by a health physicist concedes 
that NIOSH dose reconstructions have not been overestimating 
dose as Mr. Hallmark has contended. In fact, this DOL e-mail 
says, ``now that I think about it, most of the dose 
reconstructions for the special cancers we are reviewing that 
resulted in a probability of over 50 percent are appropriately 
performed by NIOSH and no rework is required.''
    However, ``the need for maintaining secrecy seems to be a 
concern.'' This DOE e-mail added ``I hope no one is mentioning 
the fact that we took another look at these dose 
reconstructions and said it was fine in the recommended or 
final decisions.'' But the concern is that documents show that 
the DOL's final adjudicative branch cooperated in advancing 
this management plan to reduce the payment of claims and thus 
they compromised their independence as an adjudicator.
    There may be a need for legislative reforms to separate the 
adjudicative branch from control of program officials and OMB.
    I notice my time is close to wrapping up. I just have one 
other point.
    The OMB passback called for changing the membership of the 
President's Advisory Board on Radiation and Worker Health, 
which audits the scientific quality of dose reconstructions and 
reviews SEC petitions.
    Today the composition of the board as the Chairman noted is 
not in compliance with EEOICPA, which requires a balance of 
scientific, medical and worker perspectives. There are only two 
of the four required worker slots, and only two of the four 
required medical slots.
    The Board also lacks the balance and diversity of 
viewpoints that is called for under the Federal Advisory 
Committee Act, thus compromising its independence. We recommend 
that Congress enact legislation to shift the appointing 
authority from the President to Congress.
    And on November 3, 2006, NIOSH compensation program 
director Larry Elliott--and this is just an emerging issue--
unilaterally suspended all access by the Advisory Board and its 
audit contractor to the claimant database.
    As of November 13th--2 days before this hearing--the 
Advisory Board's access to the electronic database of records 
was reinstated--although the constraints are unknown. However, 
Mr. Elliott told the board that access of the claims filed by 
Sanford Cohen & Associates or any contract entity must be 
granted on a case-by-case basis with an established purpose as 
authorized by the manager of the system of records, which is 
Mr. Elliott. The board's audit contractor is now reduced to a 
mother-may-I situation where the entity is audited. Mr. 
Elliott's actions raise questions about the degree to which 
there is a conflict of roles.
    In November 2004, Mr. Elliott was removed as the designated 
Federal official to the Advisory Board due to his conflict of 
roles as manager of both the dose reconstruction program and 
controlling the board.
    The GAO's recent report to this Subcommittee warned NIOSH 
to be alert for a conflict of roles in managing the program, 
yet this conflict has resurfaced.
    We recommend legislation to ensure that the Advisory Board 
and the audit contractor have full and unfettered access to all 
NIOSH files they deem necessary to carry out their 
responsibilities under that Act consistent with the Privacy 
Act. Thank you for your time.
    Mr. Hostettler. Thank you, Mr. Miller.
    [The prepared statement of Richard Miller follows:]

                Prepared Statement of Richard D. Miller




    Mr. Hostettler. At this time, the Subcommittee will turn to 
questions.
    Dr. Fuortes, what specific recommendations would you offer 
to improve this program, either administratively or 
legislatively?
    Dr. Fuortes. Thank you.
    Well, there are several issues. I think that one of the 
issues that comes up is--has come up repeatedly is the 
independence and the ability of the board and the auditor to do 
their functions.
    I think that that could be done legislatively or by a 
variety of mechanisms. But I think that is certainly the 
functions of the Board and the functions of the auditor need to 
be recognized as very valuable functions to the claimants and 
petitioners. They have no other access to that sort of 
expertise. And I don't think that that request falls into the 
line of requesting worker advocacy. I think it is access to 
scientific acumen.
    There are several issues, I guess, as regards the SEC 
process and the SEC cancers, but one issue would be that the 
SEC process should be facilitated I think and if it is NIOSH 
that can help petitioners, if it is an agency such as the 
Advisory Board, if it is another agency that is fine. But I 
think that former workers and their families are disadvantaged. 
They don't know what their exposures were. So somebody has to 
assist them in educating them. This was the situation 
historically. Maybe it is the Department of Energy's 
responsibility. But that should be looked at.
    Another issue, I raise just briefly is that the list of SEC 
cancers itself might be reviewed. And I think that there is 
probably--this is a point in time in which MCI or NIOSH or some 
other agency could get involved in examining that list. I think 
that there is--there are some deficiencies in the inclusion of 
that list. You asked a very broad question and maybe this is 
something that I am rambling on about.
    Mr. Hostettler. Appreciate it. Thank you.
    Dr. Mauro, a DOL memo prepared for OMB states the 
following, ``the Advisory Board has totally failed to take a 
balanced approach to examining by NIOSH activities. This 
unwillingness to fulfill their statutory responsibility by 
carefully examining issues such as whether so-called claimant 
friendly devices increasingly adopted by NIOSH are 
overestimating or overcompensating claimants has been magnified 
by NIOSH's decision to provide technical support through a 
contractor, Sanford Cohen & Associates, rather than through its 
own staff. SC&A has relentlessly pursued an agenda that appears 
to be designed to result in maximizing payments to claimants 
regardless of scientific validity.''
    Please explain how SC&A does its auditing work. For 
example, does SC&A only examine underestimates, or does it also 
assess overestimates of doses that would lead to inappropriate 
compensation decisions?
    Likewise, has SC&A actually identified such overestimates 
and pointed this out to NIOSH or the Board?
    Mr. Mauro. To answer the question, first, it must be 
understood that the cases that we review are given to us by the 
Advisory Board. They select the ones to make sure they get a 
good cross section that represents as many different 
facilities, different types of cancers, different time periods, 
as possible. And we receive these cases from them.
    Then we have a process of systematically checking each and 
every dose reconstruction to give an individual for every year 
we check how they calculate, how NIOSH has calculated that 
dose.
    And we determined whether or not they followed their own 
procedures, whether or not the procedures they followed were 
appropriate.
    The bottom line is for each dose reconstruction that we 
audit, we prepare a list of findings and identify deficiencies.
    Now, it turns out we have completed 60 such audits. We have 
249 findings out of the 60 audit reports.
    Out of those, we found 102 had errors that resulted in 
underestimates of the dose. And we have we had, we found 84 
that resulted in an overestimate of the dose. And we found 63 
that were errors but they really didn't affect the dose one way 
or the other.
    We are virtually--when we approach the process, we are 
really blind to whether or not the outcome is going to be over 
or under. We just look for errors in science, errors in the 
ability for them to access the proper data and use the proper 
procedures. And what falls out of that is the finding. And then 
at the end, you can make a determination, well, does that 
finding have the effect of resulting in an underestimate or the 
overestimate in the dose?
    We then sort all that out in our database, and I just sort 
of summarize for you so the outcome of this is one that we do 
both. We identify places where the science and the procedures 
are flawed and where it needs to be fixed.
    Mr. Hostettler. Thank you. Thank you, Dr. Mauro.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, and thank you all for 
your testimony, and please know that this Committee remaining 
constituted as it is in terms of its jurisdiction will continue 
to work to solve this problem, and I think this injustice to 
many who have served so well.
    Let me, Mrs. Bates, start with you, and thank you and thank 
your mother and brothers and also thank your late father for 
not only his service to the Department of Energy but to the 
United States Navy.
    And I, frankly, just want to get on the record the fact 
that you relate to us a painstaking effort on your behalf, on 
behalf of your family.
    The good news is that there was a family member who had the 
wherewithal to engage.
    Many of those these individuals who are themselves victims 
are elderly. Many of them may not have the wonderful support 
system that you provide.
    Just tell me how you felt going through all of this and 
then ultimately seeing your Social Security number mistyped? 
You know we always say to err is human. But putting the burden 
on you to get all of these activities in order and then to see 
a representation of a cavalier approach or attitude of a 
misprinted Social Security number.
    Ms. Bates. Well, I can tell you, it is very frustrating 
from a personal standpoint. And I will honestly admit for the 
first few years of the process I was kind of disengaged. My 
mother had all the correspondence, filled out the forms and you 
would occasionally have a follow-up call with a case worker.
    When she got the original dose reduction, after a series of 
other errors which are outlined in my statement, she called me 
and said, I can't read this, what does it say? And that is when 
I really sat down and looked at it. And I couldn't read it 
either. And I had to sit down and I have spent hundreds of 
hours of my time reading thousands of pages. I did know what 
the Code of Federal Regulations was and so I knew where to go 
on the Internet, look it up. And that is how I came to be able 
to read 42 CFR part 82 for the dose reconstruction once 
required.
    I think my biggest frustration has been not knowing what to 
do or where to do for help, because you don't get any help out 
of calling the agency directly and saying I need help. The 
common answer I would get--even when trying to get a status 
was--it is in the process. That is not an answer. I felt like I 
was being blown off.
    And I think in your bill, the position of the ombudsman, I 
might not be here today if that position existed and there was 
an effective mechanism for people to go to and ask for help, at 
all levels. And many of the claimants I am sure are elderly, 
and many don't have the wherewithal to read these documents and 
even know where to go. So I think that would be one of the most 
effective things you could go do for the process.
    And the claim process itself, not the dose reconstruction, 
not the technical, the scientific part of it but you know as a 
claimant, I give information, there is this magic black box and 
out spits an answer. If it is right or wrong, I don't know. If 
it is not right, I don't know how to get help. I don't know 
even know who to ask.
    Ms. Jackson Lee. Would you say then that elderly senior 
citizens who don't have a support system can be completely 
frustrated by this process?
    Ms. Bates. Absolutely. My mother's comments to me when we 
received the recommended decision which is sent to you after 
the dose reconstruction was that if I did not have you to help 
me, I would have simply thrown it in the garbage and been done 
with it. Because what do you do? You are not even sure what it 
says. You are really not even sure what it says. You do get to 
the end and it says you will not be compensated if the claim is 
denied. But reading between, you know, dear Mrs. Gore, and you 
will not be compensated, the 6 or 7 pages is incomprehensible 
for many people, I would imagine.
    Ms. Jackson Lee. I do understand Government documents.
    Might I also say that it is a challenge for individuals who 
are living with the disease. Tragically, your father passed. 
But I imagine if you had to entertain those elderly--those who 
are trying to be compensated it must be a piquing frustration.
    Ms. Bates. I can just imagine. I can just imagine. My 
mother is an educated woman. She is not uneducated. But 
knowing, having someone to ask questions of, is I think a 
primary responsibility of the program. And if that is the role 
of the ombudsman and that is the mechanism you can put in place 
as a help system, I don't know how you would approach helping 
people who don't have the wherewithal. How many people that are 
elderly have Internet access and use it regularly and know 
where to go and what to do?
    So to the extent that these mechanisms are available you 
have a very broad and probably varied audience with different 
levels of capability to even understand or even use the office 
or use the tool.
    Ms. Jackson Lee. Dr. Mauro, I wonder why your, the 
integrity of the auditor has now been challenged. And I wonder 
would you describe your work as a free for all for any claimant 
to claim that they are entitled, or do you do the appropriate 
vetting and research that is necessary to do the dose 
reconstruction?
    Mr. Mauro. The process that we--our contract is very well 
defined in how it works.
    We are really part of a large process. The Advisory Board 
has a mandate under the Act to independently provide oversight 
of the dose reconstruction process.
    We serve them in a technical capacity. They will deliver to 
us the cases that they would like us to look at. The only cases 
that we formally audit are the ones that are delivered to us by 
the Advisory Board.
    Then we follow procedures that have been developed and that 
we are held accountable to that have been approved by the 
Advisory Board. We have checklists. And everything we do, I 
would have to say, is very deliberative. It is not a free for 
all. It is--what we are--very often there are many, many people 
who would like us to look at their cases. But we have--our 
mandate is very well defined. Our role is to support the Board 
and review those audit, those cases that are given to us by the 
Board and report back to them.
    Ms. Jackson Lee. What is your explanation that you are 
being charged, having followed the rules by the book with 
wanting to give everyone money or to approve every case? How do 
you answer that? What is behind that?
    Mr. Mauro. I don't have an answer. I don't have a ready 
answer.
    Ms. Jackson Lee. You feel you are following the rules?
    Mr. Mauro. Our rules are laid out before us very clearly 
and we are following them.
    Ms. Jackson Lee. It may be the accusations are made by 
individuals who want no one to be compensated or don't view 
this as a realistic claim that so many people are suffering. It 
might be the case.
    Mr. Miller, I might throw this to you and thank you for the 
leadership you have given on these issues.
    My legislation, H.R. 5840, I think, answers Mrs. Bates's 
questions and some of the points you have made. Might you share 
how 5840 can get us started, at least in answering the question 
I posed to Dr. Mauro? Why is his integrity being challenged? He 
has argued that he is following the rules and he has nowhere to 
go in terms of raising his defense because he is being charged 
with a free for all in this process.
    Mr. Miller. Well, first, if I might say, having been to, I 
think, 41 of the Advisory Board meetings and watched the 
deliberations, I would assume that if there were technical 
acumen provided to claimants in order to assess whether, in 
fact, their claims may have been, the dose may have been 
underestimated or that an SEC might be warranted, and you 
viewed your role over in the Department of Labor as second 
guessing that, and that your job was to engage in cost 
containment measures, and that appealing to the office of 
management and budget's natural inclination to look at budget 
issues and to curry favor accordingly, and then to pursue an 
agenda where you reshape the program, not as Congress has 
intended it, but as you wished Congress had done it, and to do 
so in secrecy might explain why these nonpublic documents which 
the Subcommittee has been so capably obtaining and now making 
public for the first time, I think illustrate a larger 
overarching agenda to undermine congressional intent.
    And really, I think the Labor Department is undermining the 
integrity of the program by attacking Sanford Cohen & 
Associates with really--without an iota of substance or 
credibility.
    And I say that because the Labor Department has not once 
come before the Advisory Board and said technically we disagree 
with the finding of the audit contractor, or we disagree with 
the conclusion on a special cohort that the Board voted out. 
Instead they do this in secret with the Office of Management 
and Budget seeking to undercut this process or working with the 
White House to stack the Advisory Board.
    This is the problem that we are facing is that there is a 
back-door operation underway here that is undermining what goes 
on in public. And I certainly hope that we can continue to 
explore this further.
     With respect to your legislation, I think it makes an 
excellent start. It captured a number of the ideas that both 
Congressmen Tom and Mark Udall presented before this 
Subcommittee in their testimony, and I was pleased to see you 
incorporate some of their recommendations as well, and I will 
also note that they cosponsored your legislation, but this 
legislation, I think the most important and central part is 
that congressional intent has got to be reinstated in this 
program. How do we go about doing that.
    Well, I think the first step that your legislation takes is 
let us have Congress make directed appointments. Let us take 
this out of the Administration. There is too much temptation by 
OMB and the green eye shades to undermine congressional intent 
here. Let us have Congress on a bipartisan basis make directed 
appointments consistent with the statutory criteria of medical, 
scientific and worker perspectives.
    So I think that is a first and important start, and we have 
other suggestions as well.
    Ms. Jackson Lee. Mr. Chairman, may I just make this point? 
I am not sure if you are going on a second round. I have a 
military briefing that I am being called to, and so if I depart 
and the Chairman is having a second round, I am not sure.
    Mr. Hostettler. I am having a second round, yes.
    Ms. Jackson Lee. If I move, then you will know where I am 
going. If I am still here, I am getting word that I can stay a 
little bit longer, but Mr. Chairman, I just wanted to say that 
with your leadership and the opportunity for another hearing to 
finish this out when we return, please accept our commitment 
that this is not going to be left undone. There are too many 
patriots that we have to respond to, and I will--listen, I 
might be here for the second round, and I thank the witnesses 
very much.
    Mr. Hostettler. I thank the gentlelady. We will now go to a 
second round of questions.
    Ms. Bates, you have spoken on this at some length, but more 
directly do you feel the process today is claimant-favorable?
    Ms. Bates. From the claimant perspective, no, because--and 
I think we have addressed this--I felt the burden of proof was 
on me, and when I say ``claimant-favorable,'' I know there is a 
lot of language in 42 CFR 82 that addresses claimant-favorable 
with respect to the dose reconstruction, but from the 
claimant's perspective of how is the process going, not when I 
have to literally prove to NIOSH that records do exist and that 
this was his job and this is the building where he worked, that 
cannot be perceived as claimant-favorable.
    Mr. Hostettler. Thank you.
    Mr. Miller, your testimony indicated that the NIOSH 
program's staff had cut off access to claims data for the board 
and the audit contractor. We understand that NIOSH has restored 
board access to data. However, the audit contractor has not had 
access to the claims database. How would you recommend that 
this problem be resolved?
    Mr. Miller. Well, Mr. Chairman, I certainly know that the 
Director of NIOSH has now been made aware of this problem. John 
Howard has received communications on this. Secondly, I think 
that the situation that NIOSH has taken has told the audit 
contractor--and they are here to confirm it for themselves--
that they must provide a rationale and a justification for the 
records they want to look at when they do an audit, which to me 
seems to be placing the audited entity in the position of 
putting up obstacles, and it certainly leads to the 
inefficiency of the process, and I would argue it deters the 
depth and breadth with which the auditor can pursue his job or 
her job.
    My recommendation is that either something be done in the 
appropriations bills this year or in some legislative vehicle 
that provides full and unfettered access for the board and the 
audit contractor based on what they deem is necessary, not what 
NIOSH deems is necessary. That is point one and, two, that, you 
know, obviously the usual constraints of the Privacy Act and 
national security in terms of dealing with classification would 
apply, but they need to be able to see and access those 
documents without any interference whatsoever, and I think 
Congress needs to provide crystal clear authority for that to 
happen.
    One would have thought that with a program where its 
leadership boasts of its transparency that it would not engage 
in this kind of activity, but it is going on, and I do not know 
what is really driving it, but there is something motivating 
this that is not entirely transparent, Mr. Chairman.
    Mr. Hostettler. Thank you.
    Dr. Mauro, in pursuing that, that notion of access and the 
lack thereof, has lack of access been a challenge in meeting 
deadlines in carrying out your work?
    Mr. Mauro. Well, this new--the new set of ground rules were 
only instituted about a week ago, and the nature of the ground 
rules are that we have to inform or request access to specific 
information, which we have done. Normally, we would have had 
directly accessed that information and have already gotten the 
information we need and we would have gotten the work done, but 
right now we have requests in under this process, waiting for 
the material to be released to us. So, in the respect of the 
past week, I would say, yeah, there has been--because of the 
process, there are records that we have not looked at yet that 
we normally would have if this access was not restricted.
    I would like to point out, however, on my way here today I 
did receive a phone call from the contracting officer, Mr. 
David Stout, who informed me that they are taking a real close 
look at this and that there is a good possibility that SC&A 
will be granted free and unfettered access to the records, but 
they are discussing that right now and looking into that 
further.
    But to answer your question, the degree to which it will 
prevent us from getting our job done, there is no doubt it is 
an inconvenience. It will slow down the process. It already has 
to a certain degree. As I mentioned, there are certain 
documents we would have liked to have looked at today that we 
really have not been able to look at.
    Mr. Hostettler. So free and unfettered access would 
probably be the optimal arrangement with regard to access for 
your work?
    Mr. Mauro. Yes.
    Mr. Hostettler. And this is what it was for how long prior 
to this recent evolution in the process?
    Mr. Mauro. Well, when we first started the program about 3 
years ago, we had some serious difficulties gaining access to 
the records we needed, and it made it very, very difficult, and 
it was a painful process to get to the point where we did have 
access. So the machinery--they are these large computer 
programs containing tons of information. Little by little we 
were granted access to the point where we did have what I 
considered to be very good access to the records, and that may 
have gone on. I would say for the past 6 months things were in 
pretty good shape, but now with this new policy we sort of took 
a step back.
    Mr. Hostettler. Thank you.
    The Chair now recognizes the gentlelady from Texas for 5 
minutes.
    Ms. Jackson Lee. Let me just again conclude by indicating 
that you have given us a great deal of insight on how we can 
expand H.R. 5840 and also some insight, Mr. Chairman, possibly 
on working with the Appropriations Committee to at least get, 
maybe, points that we agree with particularly on the advisory 
committee aspect.
    Dr. Mauro, could you just give an example of where you have 
identified significant omissions or holes in the data that were 
generated by your access to the material? Do you have like one 
example or have you discovered something? If you had not had 
any access, you would not have been able to secure that 
information?
    Mr. Mauro. Yes. I guess the most important one is what is 
happening right now. Right now we are in the middle of 
reviewing the Rocky Flats SEC petition. There are some very 
serious issues before us on whether or not the record is 
complete with regard to the doses to workers. Are there 
significant gaps? There are some questions of falsification of 
records and destruction of records deliberately. All of these 
are part of the record of the petition's concern.
    Now, in order for us to investigate these matters, not only 
us but also NIOSH, the only way to determine whether the 
seriousness of these gaps and the statements made in the 
petition is to go into the records. Without having access to 
those records, these questions cannot be answered, and to place 
certain constraints on, you know, the degree to which we can 
access our protocol, it is going to make it difficult, and we 
do not know how difficult it will be, and let us say we do have 
to live with this new set of ground rules. It will make it 
difficult for us to do the investigations that we would like to 
be able to do, but of course if those are the ground rules, 
that is what we will do.
    So that is one very important example of where having 
access to records is important. I hope that answers your 
question.
    Ms. Jackson Lee. And so, in essence, it is a question of 
fairness. Do you have any access to determine what is right, 
what is wrong, what is a fact, what is not a fact?
    Mr. Mauro. In the end the records is what the whole program 
is about.
    Ms. Jackson Lee. Not your favoritism. You are not in the 
business of favoritism, I take it?
    Mr. Mauro. No, of course not.
    Ms. Jackson Lee. You are in the business of independent 
research and auditing----
    Mr. Mauro. Yes.
    Ms. Jackson Lee.--and I think, Mr. Chairman, that this is 
one of the harshest discoveries that we have made, and it is 
interesting that the call was made to reconsider this, but a 
fact finder cannot be a true transparent fact finder without 
having access to documents.
    Dr. Fuortes, do you have any quick suggestion on this issue 
that you raised that was dealing with any improvements to the 
Special Exposure Cohort process?
    Dr. Fuortes. Well, as I said, I think workers need some 
assistance or sites need some assistance, and as I said, I 
think this could be in several fashions, but that is one issue.
    Ms. Jackson Lee. An ombudsman or someone advocating?
    Dr. Fuortes. Well, most of what I have been working with 
has in fact been claims-oriented, and the ombuds---I work a bit 
with the ombudsperson's office, and I think that that--what you 
have suggested of expanding that role would be fantastic. The 
claimants are elderly. They do have a great deal of difficulty 
in collecting and interpreting medical information. They have 
the responsibility of collecting all of this information, and 
if you can, imagine somebody without Kathy to help them. I 
think that we can see that there is a real need for some 
assistance in this process. I do not know if the resource 
centers are supposed to do this work or not, but I believe that 
the ombudsperson's office being expanded to fulfill that role 
of claims assistance and, in particular, assistance with the 
evaluation or the auditing of the denied claims by DOL would be 
very, very helpful.
    So this is not exactly answering your question of problems 
with the SEC but how I view improvement of the overall program.
    Ms. Jackson Lee. Let me just say that the two devils in the 
details are the DOL acting as the handmaiden of the OMB as it 
relates to doing their job and cost-cutting, and what we have 
found is that cost-cutting seems to have carried the day as 
opposed to fact finding. When you find the facts, you will 
define the pool of applicants that are legitimate, and then you 
begin to make the case for how they are compensated, but if you 
start out with an OMB cost-cutting challenge, then you are 
cutting the edges in terms of finding out the truth, and I hope 
that that is not what my understanding of the Advisory Board 
and this process was to be about.
    So I, again, think this is my second expression of 
appreciation. Thank you for the insight that has been given and 
some of the additions, Ms. Bates--Mrs. Bates--that we would 
like to add to the existing legislation, issues that you have 
given us for consideration. Again, thank you.
    Thank you, Mr. Chairman.
    Mr. Hostettler. I am going to ask a couple more questions. 
First of all, Dr. Fuortes, what is your view on the current 
balance of the Advisory Board?
    Dr. Fuortes. My impression is that even the term 
``balance'' is confusing. To me, it is very confusing because, 
from documents that were made available to me, it appears that 
people view the balance on the Advisory Board being a balance 
of the employer's perspective and worker advocacy.
    I think the Advisory Board is tasked with making scientific 
judgments, so worker's perspective is important in terms of 
knowing the worker's language, knowing about the processes 
involved in facilities, not worker advocacy, and so I am very 
disturbed by that terminology in those documents. I think that 
I would prefer people follow through with the concept of 
difficulty in ascertaining risk and determining how to fulfill 
the language and intent of the EEOICPA Act on the basis of 
scientific judgments.
    In that case, I would say that instead of balance the skill 
sets reflected on the--which is what you are getting at--the 
skill sets reflected on the Advisory Board would suggest to me 
that they probably need a little bit more medical epidemiology/
radioepidemiology background. The one radioepidemiologist is, I 
think, very, very overburdened with the current tasks, and I 
would say that I would look at skill sets instead of balance 
because, to me, the concept of ``balance'' really implies 
advocacy roles and antagonism between two separate advocacy 
roles.
    Mr. Hostettler. With the notion of skill sets, how would 
that be redundant with the task of the contractor itself, or 
would it be?
    Dr. Fuortes. Oh. Well, I do not know that the contractors 
are medical epidemiologists per se. I would say that their 
skill sets lie more in radiophysics dose ascertainment, and 
medical epidemiology was--certainly, there is an overlap 
between the fields, but I would say that they are separate 
areas.
    Mr. Hostettler. Okay. Thank you.
    Mr. Miller, has it been your experience that the shoddy 
processing of Ms. Bates' survivor claim is unique or is it 
systemic?
    Mr. Miller. The circumstance that Ms. Bates brings up 
certainly brings to mind for me several other recent cases 
where the mechanics of the claims processing is deficient. Let 
me give you an example from the Nevada test site, for example. 
The Nevada test site--they are--NIOSH concedes that in their 
site profile documents that they cannot reconstruct dose for a 
whole group of workers who were out at this nuclear weapons 
test facility. When they did certain underground tests, the 
tests did not stay contained. They blew out. They vented, so to 
speak, euphemistically. Some of these ventings went on for 30 
hours and traveled all the way to Utah. So, when we say 
``venting,'' we mean a large amount of particulate debris that 
was forced into the atmosphere over a protracted period of 
time. Huge amounts of pressure built up underground. The 
workers around it were not necessarily monitored or monitored 
adequately, and NIOSH does not have a clear way to estimate 
their dose, but what they put is--they say that workers will 
self-identify if they have been in these events. They assume 
that claimants will self-identify and survivors will self-
identify, that one of these ten out of--you know, over the 
hundreds and hundreds and hundreds of tests that have been 
conducted there that they will flag that and that NIOSH will 
know it, and then, if they know that, they will set it aside.
    Well, the fact is claimants are not even asked if they were 
involved in these tests by NIOSH, so NIOSH just goes ahead 
willy-nilly and is reconstructing doses while omitting these 
events that they cannot reconstruct dose for. So you are 
supposed to be setting these aside and either pending them or 
perhaps putting them in another special cohort.
    Instead, what is happening is due to the administrative 
failures of NIOSH in its claimant interview process the failure 
to obtain the information that these workers should not be 
dose-reconstructed, because NIOSH already admits they lack the 
data and the wherewithal to do it, and yet they are running it 
through the process. How is a claimant, when they get this 
gibberish back in their dose reconstruction report, ever going 
to fathom that their case was so grossly mishandled? And I have 
had the privilege of working with the Senator's office from 
Nevada who has fed me a number of these cases, and I am 
astounded at the degree of ineptitude in the basic bureaucratic 
processing of the claims by NIOSH.
    Mr. Hostettler. Thank you.
    Those are all the questions I have.
    The gentlelady from Texas.
    Ms. Jackson Lee. I am prepared to yield, and I think that 
we have made a very, very good record particularly by all of 
the witnesses coming from different perspectives, and I would 
appreciate, Mr. Chairman, if we could collaborate in this 
period between now and the close of this session to see how--at 
least the strengthening of the Advisory Board subtitle (B), but 
the integrity of Dr. Mauro's process, I think, is key. He must 
be unfettered, and he must be able to view documents with 
integrity. There will be several elements that will help move 
these cases along, and I thank you very much, and I yield back 
my time.
    Mr. Hostettler. I look forward to working with the 
gentlelady from Texas.
    Without objection, all Members will have 5 legislative days 
to make additions to the record. The Chair will also notify the 
witnesses that we will have a set of a few questions. I have 
some questions for some of the witnesses that are here today 
that I was not able to ask, and so I would request that the 
witnesses would respond to those questions in a timely fashion, 
and that time frame will be made known in correspondence that 
we will make with you.
    The business before the Subcommittee being completed today 
without----
    Ms. Jackson Lee. I will join you in written questions as 
well. Thank you.
    Mr. Hostettler. Without objection, the Subcommittee is 
adjourned.
    [Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable John N. Hostettler, a 
  Representative in Congress from the State of Indiana, and Chairman, 
        Subcommittee on Immigration, Border Security, and Claims




       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress from the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims



 Memorandum from Morton Rosenberg, Specialist in American Public Law, 
         American Law Division, Congressional Research Service




         Prepared Statement of Robert Alvarez, Senior Scholar, 
                      Institute for Public Studies




               Office of Management and Budget Memorandum



   Prepared Statement of Paula Graham, Member, Advisory Board to the 
   Health Researchers of the University of Iowa, Department of Energy



    Response to Post-Hearing Questions from Laurence Fuortes, M.D., 
    Professor, Department of Occupational and Environmental Health, 
                           University of Iowa



 Response to Post-Hearing Questions from John Mauro, Project Manager, 
 Dose Reconstruction Consulting Services, Advisory Board on Radiation 
      and Worker Health Under EEOICPA, Sanford Cohen & Associates



Response to Post-Hearing Questions from Kathy Bates, Surviving Claimant 
 Under the Energy Employees Occupational Illness Compensation Program 
                                  Act



                               ATTACHMENT




 Response to Post-Hearing Questions from Richard Miller, Senior Policy 
               Analyst Government Accountability Project




              Prepared Statement of Sandra Wolff Baldridge



Significant documents and communications related to the Subcommittee's 
  oversight of the Energy Employees Occupational Illness Compensation 
                              Program Act



                                 
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